John Yoo
Professor of Law, University of California at Berkeley School of Law
Monday, September 12, 2005; 11:00 AM

John Yoo , a professor at the University of California at Berkeley School of Law and former counsel to the Senate Judiciary Committee, was online Monday, Sept. 12, at 11 a.m. ET to discuss the start of confirmation hearings for Supreme Court nominee John Roberts .

The transcript follows.

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John Yoo: Good morning. It is a pleasure to join you from Berkeley, CA to talk about Judge Roberts, the Supreme Court, and the confirmation process. I have had the opportunity to view the process from the perspective of all three branches of the government, as a law clerk on the Supreme Court, an aide on the Judiciary Committee, and a political appointee in the Bush Justice Department. I hope that my experiences from this and from writing and teaching about the Supreme Court can help in understanding the confirmation process that is beginning in an hour.

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washingtonpost.com: Recent op-eds by John Yoo : A Revolution That Had Run Its Course , ( Los Angeles Times, Sept. 5, 2005 )

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John Yoo: That is a very tough question, and one that is at the heart of the political and constitutional struggle between nominees and Senators over the last two decades. A member of the Senate can choose to vote for or against a nominee for whatever reason he or she chooses, and can ask any question they want. Senators have a duty to uphold the Constitution, just as other members of the federal government do. They should not vote to confirm nominees to the courts whom they believe will not properly interpret and enforce the Constitution. At the very least, then, they should read a nominee's previous writings to determine their judicial philosophy.

At the same time, nominees have a duty not to judge cases before they are argued and submitted to them for decision. We would think it wrong, for example, for a nominee to announce during confirmation hearings that he or she will always vote for or against the police in a search or seizure case. That limits their ability to answer.

One last point. This is not an issue that is subject to judicial review -- it would almost certainly be a political question that the courts would stay out of. Any consistent norm of behavior would be settled by the Senators themselves.

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Odenton, Md.: How can someone that has never been a Supreme Court Justice be nominated for Chief Justice? For me it seems as if a person is becoming "police Chief" yet, was never an officer. Does the public have any say in this matter?

Surely the public has a say, by pressuring the President and Senators to demand certain qualifications for the Chief Justice position, if that is what desired. I want to note that several prominent political and legal leaders over the last few years have been calling for the appointment of Supreme Court Justices who have no previous judicial experience. This was, in fact, the normal practice for many parts of our history.

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John Yoo: No. I believe that Roberts rendered some small assistance to the Bush side, but I think you are thinking of Ted Olson, who was Solicitor General in the Bush Justice Department and argued Bush v. Gore (successfully) at the Supreme Court.

Va.: What if he was confirmed as a Justice and then renominated for the Chief Justice position? Would he have to go through another confirmation hearing?

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Washington, D.C.: Does Roberts have the requisite experience and qualifications to be a Supreme Court Justice? And if so, does he really deserve to be the Chief Justice? When most Americans think of our country's highest court, we envision older, wiser judges who've been around the block a couple of times, and Roberts just doesn't seem to fit. Does that mean Roberts isn't worthy or that Americans should change their views of Supreme Court Justices?

John Yoo: I cannot speak about whether Roberts "deserves" to be Chief Justice. I am not sure whether anyone does. There are several fine lawyers, judges, and politicians who would make excellent Justices on the Court, but they are not there nor will they ever be.

In terms of his experience and qualifications, however, Roberts is just as qualified as anyone else. He is, I believe, the finest oral advocate before the Supreme Court of his generation. He has an amazing record of winning cases before the Court. This requires him to know both the large body of law before the Court, and the dynamics of the Justices and their interactions. He already has a lifetime of experience dealing with the Court as an institution, far more than many other prominent lawyers and judges who are older than he is.

You may want to have some type of age requirement for the Court. It is true that someone who looks youthful does not necessarily fit our image of old, white-haired judges. On the other hand, this Court is getting old -- almost all of them are over 65. I am not sure whether it is healthy for the Court to have a concentration of Justices who are quite old. It may be a good thing to inject some younger blood into the institution.

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Baltimore, Md.: Greetings. My question pertains to a potential Roberts-led overturn of Roe v. Wade. Clearly, if Roe is overturned, then the abortion issue goes back to individual state legislatures. But could the U.S. Supreme Court then, after a Roe v. Wade overturn, further rule that abortion is unconstitutional, using such legal reasoning as scientific proof of life or constitutional inclusion of the unborn, and thus make abortion illegal in the whole country? Justice Scalia once mentioned that abortion in America can be eradicated only by a constitutional amendment. What could stop the Court for ruling against abortion as a national mandate?

John Yoo: Tough question. There is an argument that abortion is unconstitutional, even if Roe v. Wade were overruled and the states regained the power to regulate it. It would run something like this. The Fourteenth Amendment to the Constitution prohibits states from depriving "any person" of "life, liberty or property" without due process. This is the constitutional provision from which the right to privacy derives, as well as the right to abortion and other reproductive freedoms. One could argue (and several have) that "any person" includes a fetus from the moment of conception. If that is true, then the courts could hold that state regulation allowing the deaths of the fetus would amount to a violation of the Due Process Clause.

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John Yoo: Fair question! I think I said "as close as possible to finding a non-ideological, consensus nominee who can also lay claim to being a Republican." I continue to think Roberts is on the moderate spectrum of the Republican legal community. I also think he is a conservative; otherwise he would not be a Republican and would never have been appointed to the D.C. Circuit.

You raise an interesting question about the memos, written so long ago. At the time I wrote that Post editorial, I had not seen them (nor had anyone else in a long time). I have thought quite a bit about what they mean. For starters, I think young lawyers (as he was) tend to under-value the importance of following previous cases and not causing great disruption to the law. I am confident that as someone who has been a lower court judge and has practiced before the Supreme Court itself for many years, he would place far more importance on those values than he did 20 years ago. I also think that these memos are not meant to represent weighty pieces of legal analysis, such as a judicial opinion. It seems to me that Roberts was serving as a young aide who was trying to provoke his more senior colleagues to re-think assumptions and to question old verities. That is part of the job of a law clerk as well.

I think Roberts is certainly conservative. But I don't think he is ideologically driven, in the sense that he wants to move constitutional law in radical direction, or that he decides cases by fitting them into a pre-existing political framework. In this respect, Roberts stands in great contrast to nominees like Bork or Scalia, who were law professors and some of the earliest intellectual voices to question the constitutional law created by the Warren Court. I think of Roberts as being far less the intellectual warrior and more of a commonsense lawyer.

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Washington, D.C.: Senator Specter said that he intends to ask Roberts if he believes that there's a Constitutional right to privacy. If Roberts says no, is this cause for concern? In other words, do most judges believe that such a right is implicit in the Constitution, or would this make Roberts something of outlier?

John Yoo: That would be a fair question to put to Roberts, and it has been put to previous nominees. Given Roberts' respect for precedent, he will probably answer the question yes. I would be shocked if he said no. At worst, he would say that he would not answer the question so as not to prejudge any cases coming before the Court now about the right to privacy.

I think that the majority in the legal community think that the right to privacy is in the Constitution, so if Judge Roberts were to testify that it did not exist, he would be an "outlier" as you describe it because he would require over-ruling quite a number of previous Supreme Court decisions. At the same time, I think legal scholars acknowledge that this is not really an easy question, and it is hard to claim that the Framers thought they were creating a right to privacy when they adopted the 14th Amendment. Privacy has instead arisen through social change and through judicial practice.

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Philadelphia, Pa.: If I heard the news correctly this morning: John Roberts has never confronted a witness in a trial and has never advised a client of the client's rights. I guess John Roberts should be glad that one does not have to be an attorney to serve on the Supreme Court as John Roberts has never been an attorney. Will the lack of practicing legal experience be any factor in these hearings?

John Yoo: John Roberts has not been a trial attorney, but then many attorneys who practice law in this country have never conducted a cross-examination in a courtroom. Roberts has appeared in court many times however. He has practiced in the appellate courts, which is probably far better preparation for work as a Justice than practicing in the trial courtrooms. I think your observation about Roberts's lack of trial experience is also probably true with regard to most of the other members of the Supreme Court.

I don't expect this lack of trial experience to be a significant factor in the hearings. Over the years, some have called on Presidents to nominate lawyers with more of a diverse background to the Court. It is, right now, composed heavily of former appellate judges with an unusually high number of law professors. Yet, for roughly the last 30 years, Presidents of both political parties have nominated sitting federal judges to the Court. This was not the case in the past, which has witnessed Courts with former Senators, governors, cabinet members, and leaders of the bar as Justices. If Roberts is confirmed, the only member of the Court who will not have been a sitting federal judge at time of appointment will have been O'Connor, who was herself a state judge at the time.

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Washington, D.C.: I've read a lot about how Robert's views will be questioned during the hearings. My question regarding this is somewhat theoretical in nature, and that is, to what extent do you believe a potential Supreme Court candidate's views on contentious issues (abortion, affirmative action, etc.) should be considered as criteria? It seems obvious that Presidents will nominate candidates that share their ideology, and I wonder if, in the hearings, the Senate should consider not just what Roberts' views are, but his logic at arriving at those views. What are your thoughts on this?

John Yoo: Good question. I think that President's should consider judicial philosophy when they appoint Supreme Court justices. Presidents taken an oath to support and defend the Constitution, and the constitutional duty to enforce the law, so they must have an understanding of the Constitution to do that job. I think that Presidents would not do their duty if they appointed judges they thought would undermine or disregard the Constitution. In order to make sure that doesn't happen, Presidents must inquire at some level about what a potential nominee thinks of the Constitution.

The important thing, however, is to recognize that there are areas where the Constitution is ambiguous, or where reasonable people can differ. Both Presidents and Senators should realize that there are areas where they can accept someone who has a different view than their own.

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Arlington, Va.: I would assume that Justice Kennedy would now be considered the swing vote with Roberts being more firmly entrenched in a traditionally conservative form of jurisprudence. How do you think Kennedy will embrace this new roll? Do you think that he will form a strong conservative wing with Roberts, Thomas, Scalia, and whoever else is nominated or will he be more inclined to act as O'Connor did?

John Yoo: That is a tough question. I think your read of the balance of the Court is basically right. You have four justices on the liberal wing of the Court (Stevens, Souter, Ginsburg, and Breyer), and two who vote on the conservative side (Scalia and Thomas). I might add here that this is not a partisan issue, as two of the liberals were appointed by Republican presidents, and I should also say that this is not a lineup that always holds -- these divisions often breakdown in surprising ways.

But it does point out that even if Roberts is confirmed, and President Bush appoints a conservative to replace Justice O'Connor, the rumors of gloom and doom one hears from interest groups will not come true. Justice Kennedy will still be in the middle, and he will cast the deciding vote on many issues. And Justice Kennedy's voting patterns of late have shown a willingness to vote with liberals some of the times, and conservatives the other. It may show that using the phrases "liberal" and "conservative" with regard to the Justices may not be as precise or meaningful as with regard to elected politicians.

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Washington, D.C.: I just have a general Supreme Court question: When the Court "declines to hear" a case, how is that decided? Is that put to a vote of the nine members, or does the Chief Justice decide? If it is a vote, is there ever vocal dissent?

John Yoo: The court declines to hear a case by denying the petitioner a writ of certiorari. Generally, the Court decides its own docket. It hears appeals from the circuit courts. It requires 4 Justices to agree to take a case up (granting the writ of certiorari). Justices can dissent from a denial of "cert", but it is rare.

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Washington, D.C.: I worry about the idea of Roberts as new blood to the Supreme Court. He is, by all standards, a product of the existing court with all its strengths and weaknesses. Yesterday I saw a scholar on C-SPAN who said that since the 1970's, the court's load of cases heard had dropped to about half of what it was (to 80 from 160), while its list of potential cases has doubled (to 9,000 from 5,300). How is the institution of the Supreme Court helped by deciding fewer cases out of a larger number appealed to it, and how will Roberts be motivated to make real changes in a judiciary system that has been so rewarding to him?

John Yoo: There are a lot of interesting arguments about why the Court's caseload has dropped. I think the best explanation is that when the Rehnquist Court first came together in the last 1980's, it wanted to change the course of constitutional law away from the path set by the Warren Court (and often followed by the Burger Court). This caused it to reverse many of the decisions of the lower courts. As the courts generally came to understand and follow the Supreme Court's preferences, the Justices did not need to intervene as much in the lower courts as before, as constitutional law was generally moving in the way they wanted.

That said, it is true that almost all federal cases end in the circuit courts of appeals. Some have proposed that a new intermediate court be created (this was a favorite of Chief Justice Burger's). But it is unclear whether it is truly necessary. The Supreme Court does not need to decide every issue.

In terms of whether Roberts will want to make real changes to the judiciary, I agree that it is hard to imagine Roberts radically remaking the way the federal courts work. Nor could he. The basic organization and staffing of the federal courts is up to Congress. Congress could force the Supreme Court to hear more cases, or to even hear on appeal every case from the Circuit Courts. But I do not believe it will do that. The question is whether such sweeping reform is really necessary.

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Rockville, Md.: I've been wondering what Roberts' effect might be on the dynamics of the court as Rehnquist's replacement. Though Rehnquist helped civility, he did not seem much to act as an effective bridge between Scalia and Thomas and the other members -- do you think Roberts might be more effective at this?

John Yoo: I think that Rehnquist was actually extraordinarily successful in moving the Court in a common direction. Remember that the Chief Justice has only one vote and has no formal means to compel any other Justice to vote his or her way. I think that Roberts will be just as successful or even more so. He is a very modest, agreeable man with a good sense of humor and a strong sense of humility. He already knows the Justices well from years of practice before the Court. I think that the other Justices will like him and trust him, and that will be an important foundation upon which he can convince the Justices to act together in a common direction.

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Washington, D.C.: Who's on the short list and long list for the other vacancy on the court? Thanks for taking questions!

John Yoo: I think the short list for this vacancy, as reported in the Post, is the same one that was used for the last vacancy. It has a mix of lower court judges, such as Michael Luttig, J. Harvie Wilkinson, Edith Jones, and Edith Clement, as well as some non-judges, such as Attorney General Gonzales and former deputy attorney general Larry Thompson.

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John Yoo: Sorry we are at the end of the hour. I greatly enjoyed this, and only wish it could have gone on longer. But I have to run to class and you all have to watch the beginning of the hearings. I certainly welcome continued conversation via email or maybe, some time again, another web chat. Thanks for stopping by and participating.

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